Reprinted with permission from DCReport
Steve Bannon faces real trouble when he goes on trial for contempt of Congress. He has no legitimate defense— unless a judge sets aside decades of principles governing defenses in criminal cases.
If that happens, we are all in for a lot of trouble enforcing laws in America.
Bannon is still working to overthrow our government. "We're taking down the Biden regime," Bannon declared before surrendering to federal officials Monday. He was released hours later pending trial.
Bannon's problem is that he has no legitimate defense of the two crimes in his federal indictment. The indictment charges refusal to testify before the House committee investigating the January 6 insurrection and refusing to turn over documents.
We know from his lawyer what his defense will be. Bannon will assert that one of his lawyers told him not to comply with a subpoena from Congress. He'll also say he only followed orders from Donald Trump, a private citizen.
Trump claims executive privilege to block testimony about the White House's role in the attempted coup.
Not A Presidential Duty
Executive privilege is a legal courtesy extended to sitting presidents so they can hear unfettered advice from aides on carrying out their presidential duties. Trying to hang onto power after losing an election by overthrowing our government isn't a presidential duty.
President Joe Biden has waived executive privilege in this matter.
Since Trump is now a private citizen, Bannon wasn't a White House employee, and anything the duo did to prevent the peaceful transition of power was inherently unlawful. Any claim to executive privilege is nonsense.
But of course, with one in four federal judges being a Trump appointee and some federal judges being deeply political in their rulings, anything can happen.
Bannon's core problem is that a claim of "Donald made me do it" is no more valid than saying, "The devil made me do it." It's a defense no judge should allow.
However, one of Bannon's lawyers told reporters Monday that the Justice Department's Office of Legal Counsel advisory opinions show that Bannon should not be prosecuted.
What the lawyer didn't say is that those opinions concern lawful advice, not insurrection.
Bannon does have a possible and tenuous lawful defense. He could argue that he didn't know he had to comply with the subpoena for his testimony and documents. But Bannon blew up any hope of that Hail Mary defense with his defiant comments outside of court Monday.
"We're going to go on the offensive against this," Bannon said with a video crew from his War Room podcast recording his words.
Attorney David Schoen, ridiculed by Bannon as an "absent-minded professor" during Trump's second impeachment, now represents Bannon.
Schoen asserts that Bannon was merely following the advice of another lawyer in refusing to comply.
Citing Lawyer's Advice
"Mr. Bannon is a layperson. When the privilege has been invoked by the purported holder of the privilege, he has no choice but to withhold the documents," Schoen told reporters. "Mr. Bannon acted as his lawyer counseled him to do by not appearing and by not turning over documents in this case. He didn't refuse to comply."
Competent prosecutors should have little trouble demolishing that defense, assuming a judge even allows it.
The House committee wants to know about the role of Trump and his advisers in orchestrating the Jan. 6 insurrection. Evidence that committee members have already disclosed shows that weeks of planning went into the violent attack. The Trumpian mob shouted, "Hang Mike Pence," after Trump told them to head for the Capitol where then vice president Pence was certifying the Biden election.
As quoted in the congressional contempt citation, Bannon told his podcast audience on Jan. 5 that the next day, "It's going to be quite extraordinarily different. All I can say is, strap in. … You made this happen and tomorrow it's game day. So strap in. Let's get ready" and later, "It's all converging, and now we're on the point of attack tomorrow."
This isn't the first indictment for the former Naval officer. In 2020 Bannon and three confederates were indicted for stealing money from the "We Build the Wall" charity, a scam from the get-go.
Donors were promised that every penny raised would go to building a wall on the Mexican border. Only a short bit of crappy barrier was erected.
As detailed in my soon-to-be-published book The Big Cheat, Donald Trump Jr. and his girlfriend, Kimberly Guilfoyle, went to New Mexico to help raise money for this fraud.
Guilty And Pardoned
Trump pardoned Bannon for his million-dollar theft, but not his three pals. They go on trial in March in Pensacola, Fla.
That indictment charged founder Brian Kolfage, a seriously disabled veteran, with stealing $350,000 plus buying a yacht called the Warfighter, a Range Rover SUV, a golf cart, jewelry and cosmetic surgery.
Bannon's acceptance of the pardon in his million-dollar charity theft is an admission of guilt under a 1915 Supreme Court ruling. George Burdick, a New York City journalist, refused to testify about his sources of information about the Treasury Department. Offered a pardon, Burdick rejected it. In Burdick, the Supreme Court held that a citizen is free to refuse a pardon because acceptance constitutes an admission of guilt.
Judge Analisa Torres, who oversaw part of the border wall scam case, dismissed the charity fraud charges against Bannon after he accepted Trump's pardon. She wrote that "from the country's earliest days, courts, including the Supreme Court, have acknowledged that even if there is no formal admission of guilt, the issuance of a pardon may 'carr[y] an imputation of guilt; acceptance a confession of it'."
An innocent person should be granted executive clemency, not a pardon, Torres wrote. She cited a 19th century ruling by the New Jersey Supreme Court ruling explaining the distinction between pardons and executive clemency:
"If there be no guilt, there is no ground for forgiveness. It is an appeal to executive clemency. It is asked as a matter of favor to the guilty. It is granted not of right but of grace. A party is acquitted on the ground of innocence; he is pardoned through favor."
Bannon got one big presidential favor from Trump, a pardon that saved him from the prospect of years in prison as a major league charity thief. Now Bannon has no personal savior to rescue him from accountability, not unless he finds judges willing to allow illegitimate defenses to the crimes he boasts about committing and a jury dumb enough to let him off.
David Cay Johnston is the Editor-in-Chief of DCReport. He is an investigative journalist and author, a specialist in economics and tax issues, and winner of the 2001 Pulitzer Prize for Beat Reporting.